JUDGMENT
V.K JAIN, J. (ORAL)
IA No. 3580/2010 (under Order 39 Rule 1 & 2 CPC)
1. This is a suit for specific performance and permanent injunction. The agricultural land, belonging to Late Shri Ghamandi, father of defendant no. 1 Chahat Ram, was acquired for planned development of Delhi. Vide letter dated 10.9.1992, the Govt. of NCT of Delhi made a recommendation to defendant no. 2 DDA for allotment of plot measuring 400 sq. yards to late Shri Ghamandi. It is alleged that since late Shri Ghamandi was in need of money, he sold all his rights and interests in the alternative plot, to be allotted to him by DDA, to the plaintiff, vide agreement to sell dated 9.12.1996, for a total consideration of Rs. 4,70,000/- and received a sum of Rs. 4 lac from him. The balance amount of Rs. 70,000/- was agreed to be paid after allotment of plot to him by DDA. Late Shri Ghamandi executed various documents including General Power of Attorney, Special Power of Attorney and Will etc. in favour of the plaintiff. He expired on 6.2.1997 On issuance of a public notice by DDA in the newspapers, the plaintiff came to know that the name of late Shri Ghamandi was placed in the list of recommendees awaiting allotment in Rohini Residential Scheme, as on 15.11.2007 The plaintiff later came to know from DDA that the Plot No. 329, Pocket 2, Block A, Sector 32 measuring 332.58 sq. mtrs in Rohini had been allotted to defendant no. 1 for a consideration of Rs. 20,59,174/-. Since the possession of the aforesaid plot was not given to the plaintiff, a Writ Petition No. 1271/2010 came to be filed by him seeking directions to cancel/revoke the mutation of the aforesaid allotment made in favour of defendant no. 1 and restraining DDA from delivering possession of the aforesaid plot to him. The writ petition was dismissed on 2.3.2010 The plaintiff is now seeking specific performance of the aforesaid agreement to sell dated 9.12.1996 and has expressed his willingness to pay the allotment money to DDA, in addition to the sale consideration agreed to be paid to late Shri Ghamandi.
2. Defendant no. 1 has contested the suit and has disputed the genuineness of the documents relied upon by the plaintiff. The execution of the agreement to sell dated 9.12.1996 has also been denied by defendant No. 1 in the written statement and the same is alleged to be a forged and fabricated document.
3. It is an admitted position that no plot had been allotted by DDA to late Shri Ghamandi at the time he is alleged to have executed the agreement to sell dated 9.12.1996 The plot in question was allotted to defendant no. 1 many years later on 17.3.2008 The question whether the agreement of this nature is a valid and concluded contract or not came up for consideration before me in Braham Singh v. Sumitra [CS(OS) No. 1208/2011) and while deciding the IA 8087/2011 (under Order 39 Rule 1 and 2 CPC) filed in the above referred suit on 01.08.2011, I, inter alia, observed and held as under:
“4. Some of the essential ingredients of an Agreement to Sell an immovable property are (i) identity of vendor and purchaser (ii) complete description of the property subject matter of the agreement (iii) amount of consideration to be paid by the purchaser to the seller (iv) time within which the agreement is to be performed and (v) earnest money if any paid to the vendor, if one of these essential ingredients are missing, the agreement between the parties would not amount to concluded contract. A Division Bench of this Court in Mirahul Enterprises v. Mrs. Vijaya Srivastava AIR 2003 Delhi 15 referring to the provisions contained in Section 10 of Specific Relief Act, observed that a true contract requires the agreement of the parties, freely made with full knowledge and without any feeling of restraint and the parties must be ad-idem on the essential terms of the contract and in case it is an Agreement to Sell of immovable property, the law requires that it must certainly identify the property agreed to be sold and the price fixed as consideration paid or agreed to paid.
5. In Aggarwal Hotels (P) Ltd.…Plaintiff; v. Focus Properties (P) Ltd.…Defendant., 63(1996) Delhi Law Times 52, this Court, inter alia, observed as under:
“The four ingredients necessary to make an agreement to sell are: (i) particulars of consideration; (ii) certainty as to party i.e the vendor and the vendee; (iii) certainty as to the property to be sold; and (iv) certainty as to other terms relating to probable cost of conveyance to be borne by the parties, time, etc. If these ingredients are lacking in the agreement, the obligations contemplated under Section 16 for specific performance for Immovable property would not arise. It is in this background that the receipt dated June 17, 1995 has to be examined.”
This judgment was relied upon by this Court in CS(OS) No. 82/1997, Sardar Gurbachan Singh v. Sardar Avtar Singh while deciding IA No. 5955/2004.
6. The agreement, alleged to have been executed by defendant No. 1 in favour of the plaintiff on 20th September, 2006, does not identify and in fact could not have identified the property subject matter of the agreement for the simple reason that no plot of land had been allotted to the defendants by that time. At the time this agreement is alleged to have been executed in favour of the plaintiff, it was not known in which colony plot would be allotted to the defendants, when the allotment would take place what would be the size of the plot and which particular plot would be allotted to the defendants. Therefore, the property, subject matter of the agreement, was incapable of identification at the time the agreement is alleged to have been executed. It is, therefore, difficult to deny that the agreement dated 20 September, 2006, does not constitute a valid and concluded contract for sale of an immovable property to the plaintiff.
7. The learned Counsel for the plaintiff has relied upon the provisions of Section 13 of Specific Relief Act, which deal with right of purchaser or lessee against a person, who at the time of contract has no title or has an imperfect title but subsequently acquires an interest in the property. The reliance on this provision is wholly misplaced since in the case before this Court there was no valid agreement to sell in favour of the plaintiff as at the time, the agreement is alleged to have executed. The learned Counsel has also relied upon Pundlik Daryaji v. Jainarayan Maliram Shop AIR 1949 Nag 83, Round The Clock Stores Ltd. v. Aggarwal Entertainment Private Limited MANU/DE/2147/2008 and Indraraj Singh v. Chaitram AIR 1929 Nag 194. None of these judgments deal with the issue involved in this case and therefore these judgments are of no help.”
4. The learned counsel for the plaintiff has relied upon the decisions of Allahabad High Court in Ehsanul Haq v. Mohd. Umer [AIR 1973 Allahabad 425 and Moti Ram v. Khvali Ram [AIR 1967 Allahabad 484 (V 54 C 142). In the case of Ehsanul Haq (supra), the defendant/respondent no. 2 had entered into an agreement with the plaintiff whereby he agreed to sell to him the property which was a house property. The property had been declared to be an evacuee property and was duly auctioned. Subsequently, a sale certificate was also issued declaring that defendant no. 1 who was the highest bidder had become its owner with effect from the date subsequent to the date of the agreement. Defendant no. 1, after obtaining the sale certificate executed a sale deed in favour of defendant no. 2. The question which came up for consideration before the Allahabad High Court was whether keeping in view the fact of the case, it could be said that on the date of the agreement, the defendant no. 1 had unprotected title within the meaning of Section 18 of the Specific Reliefs Act. Referring to the decision of Calcutta High Court in Prem Sukh Gulgulia v. Habib Ullah [AIR 1945 Cal. 355], it was held that the agreement to sell, of the nature entered into between the parties, was a valid agreement and, therefore, enforceable in law unless it is shown that the agreement is hit by provisions of Section 6(a) of the Transfer of Properties Act or by any other law.
It would thus be seen that in the case before the Allahabad High Court, the property, subject matter of the agreement of the plaintiff with the defendant no. 1 was a duly identified property at the time when the agreement was executed. On the other hand, in the case before this Court, no allotment at all having been made to late Shri Ghamandi on the date when the agreement to sell is alleged to have been executed by him, neither there was any identified property nor was such a property capable of identification at that time. In fact, it is also quite probable that the plot, which later came to be allotted to defendant no. 1, had not even been carved out and developed at the time the agreement to sell is alleged to have been executed by late Shri Ghamandi. It has to be kept in mind that there was a time lag of about 12 years between the date of the agreement and the date of allotment of plot. Therefore, this judgment does not apply to the case before this Court.
In Moti Ram (supra), the land in dispute consisted of agricultural plots and one Kalicharan was the Bhumidar of those plots. He on 12.11.1953 entered into an agreement with one Khayali Ram by which he agreed to acquire bhumidhari rights over these plots and to transfer them to him. Khayali Ram was put in possession of the plots after execution of the agreement with Kalicharan. Later Kalicharan obtained his Bhoomidari sanad, but, instead of executing a sale deed in favour of Khayali Ram, he transferred the property to the appellants Moti Ram and Devi Ram. Khavali Ram then filed a suit against Kalicharan and the appellants for specific performance of the agreement between him and Kalicharan. The contention of the appellants was that the agreement with Khayali Ram would be barred under Section 5 and 6 of Transfer of Property Act. It was contended before the High Court that the agreement purporting to transfer future property which is not in existence is invalid because it transfers something which is not in existence at the time of agreement. Rejecting the contentions, the High Court, inter alia, observed as under:
“4. This agreement overlooks the difference between a transfer and an agreement to transfer. Transfer can only be of a specific property which is in existence, but an agreement to transfer can be of future property. This distinction is well known to the law governing the sale of good which provides that while there can be no sale of future goods, there can be an agreement to sell future goods. It is also recognized by the Transfer of Properties Act. Section 43 of which provides in effect that an agreement to sell property to which a seller has no title may be enforced against him in the future if he acquires an interest in the property. This is an implied recognition of the principle that the law will recognize and enforce an obligation to transfer property not yet acquired”.
It would thus be seen that in the case before Allahabad High Court, there was no issue with respect to identify of the plots subject matter of the agreement between Kalicharan and Khayali Ram. Not only the plots were in existence, Kalicharan was also put in possession of those plots. On the other hand, in the case before this Court, no plot for allotment to defendant No. 1 had been identified by the time the agreement is alleged to have been executed in favour of the plaintiff and in all probability it had not even been developed by DDA by that time. Moreover, the provisions of Sale of Goods Act do not apply to a transaction for sale of an immovable property. Section 43 of Transfer of Property Act deals with a case where the seller has no title to the property which he agrees to sell, but later on he acquires title to that property. It does not deal with the cases where the property is not in existence or is not even capable of identification at the time the agreement is made. In the case before Allahabad High Court, Kalicharan had imperfect title to the plots subject matter of the agreement with Kalicharan, but there was no dispute with respect to identity of those plots.
5. As noticed earlier, in the case before this Court, no allotment at all had been made to late late Shri Ghamandi by the time agreement to sell is alleged to have been executed by him. The property which was the subject matter of the alleged agreement, itself was not capable of identification or being capable of identification. It was not known at that time as to whether any plot would actually be allotted to him by DDA or not and if allotted where the plot would be situated, what would be its area and which plot that would be. Therefore, I see no reason to take a view different from the view taken by me in the case of Braham Singh (supra) wherein I have also relied upon two decisions of this Court one by learned Single Judge and the other by the Division Bench of this Court.
6. Reliance on Section 6 of the Transfer of Properties Act, in my view is also misplaced, since it would not apply to a case where the property subject matter of the agreement is, neither identified nor capable of being identified at the time of the agreement.
7. It was pointed out by the learned counsel for the plaintiff that an appeal filed by the plaintiff that an appeal filed by the plaintiff in case of Braham Singh (supra) has been admitted by the Division Bench of this Court. That in my view, would make no difference since I have reconsidered the matter on the basis of the submissions made by the learned counsel for the plaintiff and I see no reason to take a different view.
8. For the reasons stated hereinabove, I am of the view that the plaintiff has not been able to establish a prima facie case with respect to the validity and conclusive nature of the agreement to sell dated 9.12.1996 The application for grant of grant ad interim injunction is, therefore, dismissed.
The observations made hereinabove being tentative and prima facie would not affect the decision of the suit on merits.
The interim order dated 19.03.2012 is hereby vacated.
The application stands disposed of.
CS(OS) 506/2010
List for framing of issues on 13.02.2013